GURCHARAN SINGHversusSURJIT SINGH AND ANR.

                   [20121 11 S.C.R. 459


                   GURCHARAN SINGH                              A
                             v.
                SURJIT SINGH AND ANR.
                     I.A. Nos.2 to 6
                            in
       Special Leave Petition (C) No.7735 of 2010               B

                   NOVEMBER 2, 2012

                    [A.K. PATNAIK, J.]

       Code of Civil Procedure, 1908 - Order XX/I - Whether C
an application for substitution of a respondent who was dead
when the Special Leave Petition was filed was maintainable,
and if not, what is the remedy of the petitioner when he comes
to learn that the respondent was actually dead when he filed
the Special Leave Petition - Held: Where the respondent was D
dead when the Special Leave Petition was filed, the Court
can, in the interest of justice, allow an application for
amendment of the Special Leave Petition and condone the
delay in filing such an application for amendment if the delay
is satisfactorily explained - Rules 8 and 9 in Order XVI of the E
 Supreme Court Rules, which provide for substitution and
 addition of parties, will apply where at the time of filing of the
 Special Leave Petition, the respondent was alive and after the
 filing of the Special Leave Petition his legal representatives
 are sought to be substituted, but will not apply where the F
 respondent was dead when the Special Leave Petition was
 filed - Supreme Court Rules, 1966 - Order XVI, Rules 8 and
9.
    Bank of Commerce Ltd., Khulna v. Protab Chandra
Ghose and Others AIR (33) 1946 Federal Court 13;                 G
(Adusumilli) Gopalakrishnayya & Anr. v. Adivi Lakshmana
Rao AIR 1925 Madras 1210 and State of West Bengal v.
Manisha Maity and Others AIR 1965 Calcutta 459- referred
to.
                           459                                   H
    460      SUPREME COURT REPORTS                   [2012] 11 S.C.R.


A         Govind Kavirai Purohito v. Gauranga Sa AIR (1924)
    Madras 56 - held overruled.

          H.H; Darbar Alabhai Vajsurbhai & Ors. v. Bhura Bhaya
    & Ors. AIR 1937 Bombay 401; Sachindra Chandra
    Chakravarti v. Jnanendra Narayan Singh Roy & Anr. AIR
8
    1963 Calcutta 417; Angadi Veettil Sreedharan vs. Cheruvalli
    I/lath Sreedharan Embrandiri Manoor AIR 1968 Kerala 196;
  Vantaku Appalanaidu & Ors. v. Peddinti Demudamma & Anr.
  AIR 1982 A.P. 281; Karuppaswamy and Others v. C.
  Ramamurthy AIR 1993 SC 2324: 1993 (1) Suppl. SCR 121
C and Ram Kala v. Deputy Director (Consolidation) and Others
    (1997) 7 sec 498 - cited.

                        Case Law Reference:

        AIR (33) 1946 Federal          referred to        Paras 2, 3
D
        Court 13

        AIR 1925 Madras 1210           referred to        Paras 2, 4

        AIR 1937 Bombay 401         cited                Para 2

E      AIR 1963 Calcutta 417        cited                Para 2

       AIR 1965 Calcutta 459        referred to          Paras 2, 5

       AIR 1968 Kerala 196         cited                 Para 2

       AIR 1982 A.P. 281           cited                 Para 2
F
       1993 (1) Suppl. SCR 121     cited                 Para 2

       (1997) 1 sec 498            cited                 Para 2
       AIR (1924) Madras 56        held overruled Para 4
G
       CIVIL APPELLATE JURISDICTION : I.A. Nos. 2-6

                                  IN

       Special Leave Petition (Civil) No. 7735 of 2010.
H
 GURCHARAN SINGH v. SURJIT SINGH AND ANR.                 461


    From the Judgment & Order dated 17.08.2009 of the High      A
Court of Punjab and Haryana at Chandigarh in C.R. No. 6025
of 2008.

     Sushi! Kumar Jain, Puneet Jain, Gagan Gupta for the
Petitioner.                                                      B
    The following Order of the Court was delivered by

                           ORDER

      1. These interlocutory applications have been filed by the C
petitioner in Special Leave Petition No.7735 of 2010. I.A. No.
2 of 2011 is an application for substitution of legal
representatives of deceased respondent No.1. As respondent
no.1 died on 09.06.2009 and the application for substitution has
been filed on 05.09.2011, I.A. No.3 of 2011 has been filed for
condonation of delay in filing the application for substitution of D
legal representatives of the deceased respondent No.1. The
question which I have to decide is whether an application for
substitution of a respondent who was dead when the Special
 Leave Petition was filed was maintainable, and if not, the
 remedy of the petitioner when he comes to learn that the E
 respondent was actually dead when he filed the Special Leave
 Petition.

      2. Learned counsel for the petitioner relied on the
 provisions of Order XXll of the Code of Civil Procedure, 1908 F
 (for short "the CPC") as well as the amendments made thereto
 by the High Court of Punjab and Haryana and submitted that
 even where the respondent was dead when the Special Leave
 Petition was filed, his legal heirs can be substituted under these
 provisions of the C.P.C. He also relied on the decisions in G
 Bank of Commerce Ltd., Khulna v. Protab Chandra Ghose
  and Others [AIR (33) 1946 Federal Court 13], (Adusumilli)
  Gopalakrishnayya & Anr. v. Adivi Lakshmana Rao [AIR 1925
  Madras 1210]. H.H. Darbar Alabhai Vajsurbhai & Ors. v.
  Bhura Bhaya & Ors. [AIR 1937 Bombay 401], Sachindra H
     462     SUPREME COURT REPORTS                 (2012] 11 S.C.R.

 A Chandra Chakravarti v. Jnanendra Narayan Singh Roy &
   Anr. [AIR 1963 Calcutta 417], State of West Bengal v. Manisha
   Maity and Others [AIR 1965 Calcutta 459], Angadi Veettil
   Sreedharan vs. Cheruvalli I/lath Sreedharan Embrandiri
   Manoor [AIR 1968 Kerala 196], Vantaku Appalanaidu & Ors.
 B v. Peddinti Demudamma & Anr. [AIR 1982 A.P. 281],
   Karuppaswamy and Others v. C. Ramamurthy [AIR 1993 SC
   2324] and Ram Kala v. Deputy Director (Consolidation) and
   Others [(1997) 7 sec 498].

 C       3. I have perused the aforesaid decisions cited by learned
   counsel for the petitioner and I find that in Bank of Commerce
   Ltd., Khulna vs. Protab Chandra Ghose and Others (supra),
   the Federal Court took the view that where an appeal has to
   be preferred for the first time against the legal heir of a person
   in whose favour the lower Court had passed a decree, the mere
D fact that an appeal had already been preferred as against other
   persons will not justify the application being treated merely as
   one to add a party because it is in substance an appeal
   preferred against him for the first time. After taking this view,
  the Federal Court held that an application for substitution of
E legal representatives of a respondent, who was dead before
  the filing of the appeal, must be treated as if appeal is filed for
  the first time against legal representatives of the deceased
  respondent and the delay in making the application is only to
  be excused under Section 5 of the Limitation Act if the delay
F is satisfactorily explained.

       4. In (Adusumilli) Gopalakrishnayya & Anr. v. Adivi
  Lakshmana Rao (supra), the facts were that an appeal had
  been presented by the appellant against a person who was
G dead at the time of presentation and the Full Bench of the
  Madras High Court took the view that although such an appeal
  may be incompetent owing to the wrong person being named
  as respondent, the Court which deals with it has full power under
  Section 153 of the CPC to direct an amendment of the appeal
H memorandum and if the appeal is out of time against the legal
 GURCHARAN SINGH v. SURJIT SINGH AND ANR.                 463


representatives, the Court will have to excuse the delay in A
presentation of the appeal before it in exercise of its discretion.
The Full Bench overruled the contrary view of a Division Bench
of the Madras High Court in Govind Kaviraj Purohito v.
Gauranga Sa [AIR 1924 Madras 56] that an appeal filed
against a dead person has to be dismissed. The Full Bench B
of the Madras High Court further held that Rule 6 of Order 15
 of the Federal Court Rules, 1942, which dealt with substitution
 of the representative of one who is a party to an appeal and
 for addition of party did not apply to a party who was dead at
 the time of filing of the appeal.                                 c
     5. The Calcutta High Court has taken a similar view in
State of West Bengal v. Manisha Maity (supra) that Order XX.II,
Rule 4 of the CPC pfoviding for the procedure for substitution
of the heirs and legal representatives of the deceased
defendants has no application when the appeal itself was           D
preferred against a dead person. The Division Bench of the
Calcutta High Court, however, has suggested that in such a
case:

     "The remedy of an appellant, who has unknowingly filed an E
     appeal against a dead person, is to file an application for
     presentation of the appeal against the heirs of the dead
     person afresh. If the time for filing the appeal was in the
     meantime over, he is to present an application, under
     Section 5 of the Limitation Act, therein explaining the delay F
      in presenting the appeal afresh against the heirs of the
     dead person. If he can make out sufficient cause for
      making the belated prayer, the Court may allow the same,
      amend the cause title of the memorandum of appeal by
      incorporation of the names of the heirs and legal G
       representatives of the dead person and treat the appeal
       as a freshly presented appeal against the heirs."

       6. Thus, the aforesaid authorities are cle?r that where a
  party ha$ been impleaded as respondent in an appeal but such
  respondent was dead before filing of the appeal, the remedy         H
     464      SUPREME COURT REPORTS                 [2012] 11 S.C.R.


 A of the appellant is not to file an application for substitution of
    legal representatives of such respondent, but to file an
    application for an amendment of the appeal memorandum and
    in a case where such application for amendment is filed
   beyond the limitation prescribed for filing the appeal, the
 B appellant must also file an application under Section 5 of the
   Limitation Act for condonation of delay in filing the application
   for amendment and if the Court is satisfied with the explanation
   given by the appellant for the delay, the Court can condone the
   delay and allow the amendment of the appeal memorandum.
 c        7. Order XVI of the Supreme Court Rules, 1966 is titled
     "Appeals by Special Leave". Rules 8 and 9 in Order XVI which
     provide for substitution and addition of parties are extracted
     hereinbelow:

 D       "8. Where any person is sought to be impleaded in the
         petition as the legal representative of any party to the
         proceedings in the Court below, the petition shall contain
         a prayer for bringing on record such person as the legal
         representative and shall be supported by an affidavit
E        setting out the facts showing him to be the proper person
         to be entered on the record as such legal representative.

         9. Where at any time between the filing of the petition for
        special leave to appeal and the hearing thereof the record
        becomes defective by reason of the death or change of
F       status of a party to the appeal or for any other reason, an
        application shall be made to the Court stating who is the
        proper person to be substituted or entered on the record
        in place of or in addition to the party on record. Provisions
        contained in rule 33 of Order XV shall apply to the hearing
G       of such applications."

  Considering the authorities discussed above, the aforesaid
  provisions of Order XVI Rules 8 and 9 will apply where at the
  time of filing of the Special Leave Petition, the respondent was
H alive and after the filing of the Special Leave Petition his legal
 GURCHARAN SINGH v. SURJIT SINGH AND ANR.                  465


representatives are sought to be substituted, but will not apply A
where the respondent was dead when the Special Leave
Petition was filed. Where the respondent was dead when the
Special Leave Petition was filed, the Court can, in the interest
of justice, allow an application for amendment of the Special
Leave Petition and condone the delay in filing such an B
 application for amendment if the delay is satisfactorily
 explained.

      8. I.A. No.2 of 2011 is, therefore, treated as an application
for amendment of the Special Leave Petition and as the delay C
in filing the application for amendment of the Special Leave
Petition has been satisfactorily explained in I .A. No.3 of 2011,
the delay is condoned and in the interests of justice, I.A. Nos.
 2 and 3 of 2011 are allowed. The prayers in I.A. Nos. 4 and 5
 are for exemption from filing official translation and from filing
 death certificate of the deceased and are allowed. I.A. No.6 of D
 2011 is for deletion of proforma respondent No.2 Ajaib Singh,
 who appears to be the attorney of the contesting respondent
 No.1, and is allowed at the risk of the petitioner. The I.As. stand
 disposed of.
                                                                     E
 B.B.B.                                           I.As disposed of.